S.L. Peeran, Member (J)

1. The appellants have sought for setting aside the order-in-appeal dated 10-10-1988 passed by the Collector of Central Excise (Appeals), Bombay by which he has upheld the order-in-original dated 30-10-1987 passed by the Assistant Collector of Central Excise, Pune.

2. The appellants are said to be manufacturers of articles of plastics and had sought for classification of the said products under Sub-heading 3922.90 and claimed exemption from duty under Notification No. 132/86 dated 1-3-1986 and also under Notification No. 172/86 dated 1-3-1986 which was duly approved by the Assistant Collector of Central Excise, Pune Division-I on 13-3-1986.

3. The Assistant Collector of Central Excise by show cause notice dated 28-11-1986 alleged that the composite products, mentioned in the Classification list filed by the appellants, were manufactured out of steel, plastics, aluminium and polyurethane foam but not exclusively of plastics and hence it was stated in the said notice that the products cannot be said to be articles of plastics. The appellants had taken a stand that the Assistant Collector did not have power to review his own order and submitted that the composite products were articles of plastics. The goods were known in the Trade as "Articles of Plastics". However, the appellants' contentions were negatived in respect of composite products namely Hotline, Hylos and Casserole and the Assistant Collector confirmed their classification under Tariff sub-heading 3922.90.

4. They preferred an appeal before the Collector of Central Excise (Appeals) Bombay and contended before him that their products - composite articles of plastics were made out of a combination of plastics and non-plastic materials and that the weight and value of the plastics materials used in the manufacture of the disputed products predominated. They relied on Circular No. 16/88 dated 10-8-1988 issued by the Central Board of Excise Customs, New Delhi and also Trade Notice issued by the Additional Collector of Central Excise and Customs, Pune bearing Trade Notice No. 272/88 dated 7-9-1988. They also relied on approved Classification list No. 93/88 effective from 1-9-1988.

5. The learned Collector held that the Revenue can reopen approval of the classification list if approval had been accorded under mistake of law. He, however, upheld the appellant's contention that the classification has to be prospective and not retrospective. He held that by applying the principles contained in Rule 3 of the Interpretation Rules, the insulated product thermoware with plastic contents from 51% to 57% or similar range, should be correctly classified as articles of plastics under heading No. 3922.90 upto 9-2-1987 and from 10-2-1987 under Heading 3924.90. He further held that the appellants are not entitled for grant of exemption under Sl. No. 38 of Notification No. 132/86 dated 1-3-1986. He upheld that Assistant Collector's order holding the impugned product to be chargeable to duty at the rate of 15% ad valorem.

6. Shri G. Vahanvati, learned advocate argued the case for the appellants and Shri Chakraborti, learned Departmental Representative argued for the respondents. Shri Vahanvati placed strong reliance on the Circular dated 10-8-1988 issued by the Central Board of Excise Customs and also the Trade Notices issued by the Pune Collectorate. He submitted that the lower authorities were bound to follow the circular issued by the Board. He also placed strong reliance on the following citations -

1. Guest Keen Williams Ltd. Howrah v. Collector of Central Excise, Calcutta -MANU/CE/0276/1984 : 1985 (22) ELT 504.

2. Nav Gujarat Paper Industries v. Superintendent of Central Excise and Ors. - 1977 (2) ELT J-67.

3. Air Control and Chemical Engineering Co. Ltd. and Anr. v. Union of India and Ors. -1990 (26) ECC 324 (Guj.).

Shri S. Chakraborti submitted that the notification in question did not apply to the impugned goods. He further submitted that the Board's Circula